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Hudson v. Maine Public Employees Retirement System

Superior Court of Maine, Cumberland

September 8, 2016



          A.M. Horton Justice

         Pursuant to Rule 80C of the Maine Rules of Civil Procedure, Petitioner Robert Hudson has appealed from a decision of the Board of Trustees [_"~Board"~] of the Maine Public Employees Retirement System ("MPERS") denying his application for disability retirement benefits. The parties have filed briefs and the administrative record.

         The Clerk scheduled the appeal for oral argument to be held September 6, 2016 on the understanding that counsel were requesting it, but on the morning of September 6, the court was advised that counsel were prepared to waive oral argument if the court agreed. Accordingly, the case is decided on the basis of the parties' briefs and the record.

         For the reasons set forth below, the court affirms the Board's decision, denies the appeal and grants judgment to the Respondent.

         I. Background

         a. Employment and Medical History

         Appellant Robert Hudson is 54 years old and lives in Raymond, Maine. (R. at 38.6). Mr. Hudson was employed by the Maine Department of Corrections (MDOC) from 1991 to 2012, most recently as a Correctional Trades Supervisor. (R. at 38.6.)

         As a State employee, Mr. Hudson was a member of the State Employee and Teachers Retirement Program. See 5 M.R.S. § 17651 (all State employees and teachers mandated to be members of the State Employees and Teachers Retirement Program as a condition of employment).

         Mr. Hudson's job as a Correctional Trades Supervisor entailed training, supervising and assisting inmates involved in various work situations, as well as assessing the quality of the work being performed. (R. at 38.6). Furthermore, the job required Mr. Hudson to spend three to four hours driving per day, sometimes with inmates in the car with him. (R. 38.6.) In that position, Mr. Hudson was expected to respond to emergency situations that might involve restraining inmates. (R. at 38.6.) Mr. Hudson was considered a "very good employee and a very hard worker" by his supervisor.

         In April of 2008, Mr. Hudson told his primary care physician, Carl Schuler, D.O., that he was experiencing "spells" during which he would lose his train of thought and get confused. (R. at 38.7.) Mr. Hudson reported that these spells were happening three to four times per year and seemed to be getting worse. (R. at 38.7.) Dr. Schuler believed that these spells might have been migraines or seizures and ordered a CAT scan and referred Mr. Hudson to Maine Neurology. (R. at 38.7.) On April 23, 2008, Georgann Dickey, MS, ANP, at Maine Neurology, diagnosed Mr. Hudson with "transient alteration of awareness, " and noted that his symptoms "do not neatly fit into diagnostic criteria for migraine aura, seizures or ischemia." (R. at 38.7.)

         From 2008 until his episode in 2012, there was no mention of Mr. Hudson's spells in his medical records. Mr. Hudson acknowledges that his health care providers never put restrictions on his employment as a result of the spells. (R. 15.107). Mr. Hudson did not request any accommodation while employed by the MDOC. (R. at 38.7.)

         On June 26, 2012, Mr. Hudson became confused and exhibited odd behavior at work. (R at 4.67, 4.86, 4.164, 38.7). He was taken to the emergency room at Maine Medical Center, where Megan Selvitelli, M.D. found that Mr. Hudson's "history is suggestive of-a focal onset seizure with secondary generalization, likely due to the demonstrated left frontal meningioma, " i.e. that his symptoms were associated with what proved to be a benign tumor of the brain. (R. at 38.7.) Mr. Hudson was prescribed Keppra, an anticonvulsant, and told not to drive until he had three months without any seizures, or if he chose not to take the anticonvulsant, for six months of "seizure freedom". (R at 4.136-38, 38.7.) Mr. Hudson left the emergency room against medical advice. (R at 38.7.)

         On July 10, 2012, Mr. Hudson reported to Patricia Seely, NP-C, at Maine Neurology that he was experiencing excessive sleepiness, dark moods and severe lapses in memory, and was concerned that he would not he able to work while taking Keppra. On July 12, 2012, Ms. Seely ordered Mr. Hudson "out of work until further notice, " and advised that Mr. Hudson "is unable to drive and requires further testing and medical treatment at this time." (R. at 38.7.)

         Mr. Hudson's last day of work was June 25, 2012, and his last date in service was July 17, 2012, when he went on unpaid leave. (R. at 38.6). His employment was terminated on September 8, 2013. (R. at 38.6).

         Effective August 1, 2012, Mr. Hudson's medication was changed from Keppra to Trileptal. On August 3, 2012, two days after the medication change, Mr. Hudson experienced a "seizure cluster". (R. at 38.8.) According to Mr. Hudson's later testimony, the seizures on August 3, 2012, were the last he experienced. (R. at 15.76-77). On August 7, 2012, Dr. Selvitelli noted that Mr. Hudson switched back to taking Keppra. (R. at 38.8.) On September 18, 2012, Mr. Hudson saw Jason Aucoin, RN, ANP-C, a certified adult nurse practitioner in Dr. Selvitelli's office at Maine Neurology who assessed Mr. Hudson to have generalized convulsive epilepsy. (R. at 38.8.) Nurse practitioner Aucoin noted that the meningioma was unlikely to increase in size and that as long as the anticonvulsants are effective in controlling Mr. Hudson's seizures, Mr. Hudson "should not have complications" with regards to the meningioma. (R. at 9.53, 38.8.)

         In the notes from the same visit, nurse practitioner Aucoin stated that since switching back to the Keppra, Mr. Hudson has not had any additional seizures. Mr. Hudson reported that he was "doing well on the Keppra with much less side effects" and "that he feels almost normal now on the Keppra."(R. at 9.53, 38.8.)

         The record contains a note from Dr. Selvitelli indicating that Mr. Hudson had reported experiencing a seizure October 8, 2012, and placing him on a driving restriction until January 2013. (R at 9.63).

         On January 28, 2013, Dr. Selvitelli noted that Mr. Hudson continued to report "possible seizures" and discussed transitioning to an alternative anticonvulsant, which Mr. Hudson declined. (R. at 9.56, 38.8.) However, notes from Mr. Hudson's April 2, 2013 appointment with nurse practitioner Aucoin state that Mr. Hudson's "last known seizure" was when he transitioned off Keppra in 2012, and that Mr. Hudson's reported symptoms were more consistent with a depression diagnosis than with seizures. (R. at 9.58, 38.8).

         Mr. Hudson saw Amy McAuliffe, Ph.D., a psychiatric nurse practitioner with the Department of Veteran's Affairs on February 27, 2013. She noted that Mr. Hudson "continues to experience profound disabling symptoms of major depression and generalized anxiety disorder versus PTSD" and that "Mr. Hudson experiences "severe depression and anxiety with phobic avoidance of driving;" (R. at 38.8.) As a result of conducting a psychiatric evaluation of Mr. Hudson on March 27, 2013, Dr. McAuliffe diagnosed Mr. Hudson with "Major Depression, mod-sev vs. Organic Mood Disorder." (R. at 38.8.) Dr. McAuliffe noted that the location of Mr. Hudson's meningioma, in the left frontotemporal region, "can certainly be associated with such symptoms of affect dysregulation and unpredictability" that Mr. Hudson was experiencing and that there was a "specific precipitant to ...

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